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Judge Elizabeth Cooke in the Upper Tribunal has given judgment in Arqiva Services Ltd v AP Wireless II (UK) Ltd [2020] UKUT 0195 (LC). In a judgment likely to have repercussions for many sites under the Electronic Communications Code[1], it was held that an occupying operator who was holding over either as tenant at will or implied periodic tenant at the date of the coming into force of the Code did not have a “subsisting agreement” for the purposes of the transitional provisions[2], with the consequence that they lack statutory protection under the Code. It was further held that an operator in situ which has no code rights is not entitled to seek a code agreement under para 20 of the Code, even where it has made an application for temporary rights under para 27 of the Code. In Compton Beauchamp[3] the Court of Appeal (per Lewison LJ at [69]) had stated the “essential principle” that “code rights can only be conferred by agreement with the occupier.” An operator in situ is the occupier, and cannot seek code rights from itself under para 20. An operator in situ therefore could not seek para 20 code rights. However, para 27 (allowing the imposition of temporary rights) was held to be an exception to that principle. Arqiva relied on the dictum of Lewison LJ in University of London[4] (at [72]) that paragraphs 20 and 27 of the Code are “inextricably linked”. However, Judge Cooke held that she was bound to follow Compton Beauchamp, even in a situation where para 27 was pursued in addition to para 20. Judge Cooke doubted that the decision in Compton Beauchamp was fully in accordance with the legislative intention behind the Code, and wondered whether it may have gone too far. She indicated that she would give permission to appeal so that the Court of Appeal could reconsider the scheme of the Code (potentially by expediting Arqiva to be heard together with Ashloch[5]). On the factual question before her, Judge Cooke had held that Arqiva was holding over as a tenant at will following the expiry of an express agreement entered into under the Old Code. She refused to order the disclosure of licence agreements granted by Arqiva, on grounds that included a finding that they disclosed only Arqiva’s subjective intention as to its occupation status, rather than constituting an outward objective expression of it. The tenancy at will had not conferred ‘Old Code’ rights as it did not constitute a written permission to keep the operator’s apparatus on the site provider’s land: it was on the same terms as the written lease, but was not itself in writing. Jonathan Wills appeared as junior counsel for the successful Respondent, led by Wayne Clark of Falcon Chambers. __________________________ [1] Schedule 3A to the Communications Act 2003 [2] Schedule 2 to the Digital Economy Act 2017 [3] CTIL v Compton Beauchamp [2019] EWCA Civ 1755 [4] The University of London v Cornerstone Telecommunications Infrastructure Limited [2019] EWCA Civ 2075 [5] CTIL v Ashloch [2019] UKUT 0338 (LC)
